Harris.Tort Flashcards
What are non-pecuniary damages?
Non-pecuniary damages are damages that are not readily quantified or valued in money, such as proposed compensation for pain and suffering
The overall goal of tort reform is to…
…achieve stability & predictability in the tort system and to balance fairness between plaintiff & defendant
would Canadian tort reform be provincial OR federal
provincial: (needs to be coordinated with the various Provincial Attorneys General)
Cdn tort reforms: position of insurance industry (& why)
- insurance industry WANTS REFORM:
- lowers COSTS
- increases STABILITY & PREDICTABILITY of awards
Cdn tort reforms: position of Supreme Court
SupCrt will continue to be plaintiff-friendly UNLESS insurance industry gets reform enacted
Cdn tort reforms: position of trial lawyers (& why)
don’t want reform (compensation for both plaintiffs and lawyers could be lower)
Cdn tort reforms: identify potential reforms to Canada’s plaintiff-friendly tort system (4)
[1] J&S liability
- eliminate
- replace with proportionate liability
- created fund for guilty parties who can’t pay
[2] Collateral source rule
- eliminate
[3] Compensatory basis
- change from gross to net basis
[4] Vicarious liability
- eliminate
define J&S (Joint & Several) liability
plaintiff may recover (ANY or ALL damages) from (ANY or ALL defendants) regardless of share of liability
describe the proposed REFORM for J&S liability (3)
ELIMINATE J&S: for non-pecuniary damages
REPLACE J&S: with rule of proportional liability
FUND creation: for guilty parties that can’t pay
describe proportionate liability
each defendant bears a cost proportionate to their degree of fault or liability
define the ‘collateral source rule’ & provide an example of a collateral source
- evidence of plaintiff’s collateral source need not be entered AT TRIAL
(examples include sick pay & disability) - so there is potential for over-compensation
collateral source rule: describe the proposed REFORM for the ‘collateral source rule’
eliminate (& allow collateral sources to be taken into account when determining award)
describe the proposed REFORM for the ‘collateral source rule’
eliminate (& allow collateral sources to be taken into account when determining award)
define ‘compensatory basis’ in the context of income replacement
compensatory basis:
- refers to basis for compensating loss of income
- the basis can be either prior net income OR prior gross income
- income replacement is a percentage of this basis
- current practice uses a percentage of gross income
comment:
- gross basis ignores taxes & work-related expenses that aren’t incurred when not working
- so there is potential for over-compensation
describe the proposed REFORM to ‘compensatory basis’ in the context of income replacement
switch from gross to net basis
define ‘vicarious liability’ and provide an example
- where one party is held responsible for actions of another
- EXAMPLES: employee, subordinate, sublease, car rental, sexual abuse
describe the proposed reform to ‘vicarious liability’
eliminate
identify an advantage & disadvantage of ‘joint & several liability’ reform
advantage:
- discourages search for deep pockets & decreases costs
disadvantage:
- there is a cost to determining proportionate liability
- parties would tend to argue for a lower percentage
identify an advantage & disadvantage of ‘collateral source rule’ reform
advantage:
- reduces possibility of over-compensation
disadvantage:
- guilty party may not provide full compensation (but they should)
identify an advantage & disadvantage of ‘compensation basis’ reform
advantage:
- reduces possibility of over-compensation
disadvantage:
- interferes with INTENTIONAL government tax break for injured party
identify an advantage & disadvantage of ‘vicarious liability’ reform
advantage:
- discourages search for deep pockets
disadvantage:
- ALL involved parties should be held responsible REGARDLESS of level of liability
how does ‘joint & serveral liability’ increase efficiency
- reduces time & costs: promotes pre-trial settlement since damages don’t have to be apportioned
(advantage OR disadvantage J&S) with respect to defendant (1-1)
advantage: can share burden
disadvantage: may have to pay a greater proportion THAN the degree of liability
(advantage OR disadvantage J&S) with respect to plaintiff (1-0)
advantage: increases probability of full compensation WITH access to assets of all defendants
disadvantage: none
(advantage OR disadvantage J&S) with respect to insurers (1-1+)
advantage: can share burden
disadvantage: may have to pay a greater proportion THAN the degree of liability –> (cost,unpredictability) UP
(advantage OR disadvantage J&S) with respect to lawyer (1-1)
advantage: increases efficiency in legal system since it promotes settlement without trial
disadvantage: fewer cases go to court (lawyers get less $$$s)
how are Cdn tort laws too plaintiff-friendly
basically just explain JCCV issues: (J&S liability | collateral source rule | compensatory basis | vicarious liability)
give an example of a defendant group negatively impacted by J&S liability & state the impact
GROUP: defendants in asbestos injury suits
IMPACT: many defendants are bankrupt, others may pay more than their fair share under J&S
disadvantage of simple elimination J&S liability
- if a defendant goes bankrupt then there is no recourse to assets of other defendants
- plaintiff may not be fully compensated
remedy to disadvantage of simple elimination of J&S
creation of a fund for guilty parties that can’t pay their share
